One of the largest problems facing our court system is how to handle caseloads. The Administrative Office of the U.S. Courts recently released a report showing dramatic and steadily increasing caseloads in the federal court system over the past five years. Here in my home state of Washington, the new Chief Justice of the Supreme Court warned in his first State of the Judiciary address that lack of financing and increasing caseloads threaten to "overwhelm" the state’s trial courts.

Courts are increasingly turning to technology, including the electronic filing of documents, to deal with this problem. J. Michael Greenwood, of the Administrative Office of the U.S. Courts, made a presentation on these projects at the National Association of Court Managers conference in 1998. Called "A Report on the U.S. Federal Courts Electronic Filing Project," it lists the following system components for such projects: electronic submission of documents, automatic docket entries, case management functions, electronic document management, electronic noticing and electronic retrieval of case documents (including public and remote access).

But even though most parties agree that e-filing is the first step in electronic access efforts, both courts and law firms are looking for guidance on how to develop such systems. The cost of development can often be prohibitive for many courts without the assistance of an outside vendor, yet many courts, as well as firms, feel that private vendors rely too heavily on proprietary software formats. Let’s look at some of the issues involved in building an e-filing system, keeping in mind that my perspective is that of a private vendor that provides remote public docket access to law firms.

Definitions

The term "e-filing" barely existed five years ago; when it was used, it generally referred to pleadings being faxed to a court. Then came projects in high-volume asbestos and bankruptcy cases (such as CLAD from Lexis), which used the phrase to describe document filing and review in a closed, proprietary electronic environment. Over the past three years, the phrase has been used by some projects, such as JEDDI ( the Judicial Electronic Document and Data Interchange project of the National Center for State Courts) to describe standardized exchange of electronic data and electronic documents.

Others, such as JusticeLINK, use "e-filing" to define the electronic transmission of a document as an ingredient of the work process or paperflow of court pleadings, from preparation to filing in court. Other definitions include the electronic posting of opinions and orders of court, or the transmission of briefs by floppy disks, CD/ROM or even the simple transmission of documents through e-mail attachments.

Goals

The first question to be posed is what the proposed e-filing system hopes to accomplish. Judge Arthur "Monty" Ahalt, of the Prince George’s County Circuit Court and Chair of the Court’s Technology Committee, has stated:

"The court’s primary mission is to resolve disputes. The public who finds themselves in the middle of a dispute are primarily concerned with cost and time. Cost and time are only increased by jurisdictional diversity. The public is demanding new and creative solutions to old problems." ( Electronic Filing of Court Documents, www.mdlaw.net/efile.htm)

It would seem, then, that regardless of the definition of e-filing, the project in question should meet the goals of reduced costs and increased efficiency. Just as I always advise law firms when selecting software systems, courts would be best served by drafting strict system or project requirements and then finding the best software to suit their particular projects.

Benefits

Many courts restrict the filing of discovery materials, particularly deposition transcripts, due to space considerations. In addition, the physical filing of documents can be expensive and time consuming. Once in place, e-filing should help alleviate these problems by allowing law firms to send electronic documents directly from an attorney’s desktop to the "electronic file room" of the court quickly and efficiently.

What are the costs of providing public access? In CourtLink’s experience, some of the cost components include computer hardware and software; communications hardware and software; technical resource time for setup and maintenance; software development for user interface; security plan development, implementation and maintenance; marketing development and implementation; administration; user documentation; training development, scheduling and implementation; help desk; and billing for cost recovery

Even with the lowered prices of today’s technology, the cost of e-filing can be substantial; in many cases, this cost is a significant deterrent to implementing such a system. As the public has demanded greater electronic access to courts, many have questioned the government’s ability to provide up-to-date user-friendly technology. One reason is the widely different systems implemented by various courts.

Projects

Different e-filing projects around the country have utilized their own technology as courts and vendors, either independently or through co-operative efforts, have worked to provide solutions. These include:

• The United States District Court for the Northern District of California, which requires that all complaints and pleadings in securities class actions be filed with the Securities Class Action Clearinghouse maintained by the Stanford University Law School.

• Stanford University Electronic Motions Practice site, created to promote use of the Internet in filing and presenting motions for judicial decision.

• Villanova Center for Information Law and Policy: MDL 1203 Web-based Docket and Document Delivery System for the distribution of docket information, pleadings and briefs in Fen-phen class action litigation pending in the U.S. District Court for the Eastern District of Pennsylvania. (The Court’s Pretrial Order 173 makes it mandatory to use the site for all filings which affect 100 or more claimants but provides that Internet filing is supplementary to paper filing).

• The Washtenaw Circuit Court, serving Ann Arbor, Michigan, which allows briefs to be filed as e-mail attachments in one of three formats (ASCII, Word 6.0 or lower, and WordPerfect DOS 5.1 or lower).

• Pima County, Arizona, Small Claims Court, which has an electronic filing system in conjunction with Law On-Line, Inc., a vendor of electronic forms.

• King County, Washington, which is taking the position that a court record file system based on electronic documents for management and archival should be put in place first, and then e-filing would follow as a natural component of that internal system.

• The Fairfax, Virginia, County Bar Association, which set up an Experimental Electronic Filing Project that allows registered users (who must be parties or attorneys in the Commonwealth of Virginia) to upload files in Adobe Acrobat format.

Other ongoing projects are being developed by the Federal Administrative Office of Courts, WestFile by WestGroup, CLAD by Lexis/Nexis, LawPlus, LegalFile, Law-on-Line and the Microsoft/Choice/PCDocs project.

Standards

In an attempt to move away from proprietary document transmission standards, the World Wide Web Consortium released its official WC3 Recommendation 1.0 for XML (Extensible Markup Language) in February 1998. XML is a method for distributing data independent of formatting instructions and relies on internal metadata (data about data) standards (still under development) to handle information. Both Microsoft and Corel have announced that future versions of their word processors will be based on XML; it would seem that XML will overtake HTML as the preferred standard for publishing judicial opinions and filing pleadings and briefs with the courts, although not for several years.

There are, however, several projects already focusing on XML as the basis for the electronic delivery of court documents. The Electronic Court Filing Project at Georgia State University has been active in presenting the benefits of e-filing to courts, as has the Utah Electronic Law and Commerce Project. The Utah project actually sponsors an XML Work Group that has announced its intention to developed an XML-based Document Type Definition for the filing and exchange of legal documents. The U.S. District Court for the District of New Mexico has announced a variation on XML known as the XCI, or the "extensible markup language court interface," offered as a way to permit lawyers and courts to communicate with each other using an open-standards software interface.

Conclusion

How can attorneys help influence these ongoing decisions? First, try going through traditional educational channels. Join list-servs discuss technology and e-filing efforts. Attend seminars put on by your local bar, at conferences such as the ABA TechShow, or specialized sessions such as the series last fall sponsored by the National Center for State Courts and WestGroup. Become involved with educational efforts in the area sponsored by your local bar, or by organizations such as the American Bar Association.

If your local courts are working with one of the larger groups mentioned above, find out what steering committees or advisory groups are being formed and get information from them. And don’t overlook government advisory committees; it is not only courts which are looking into electronic transmittal, storage and access of documents. All levels of government are exploring this field, and the knowledge base at one level can carry over to the legal field as well.

Thomas O’Connoris with CourtLink in Bellevue, Washington. He can be reached atToconnor@courtlink.com.